July 05, 2006

Hamdan, NSA, and the New York Times

The Bush administration and its allies continue their drumbeat attack on the First Amendment with repeated threats to prosecute the New York Times for disclosing the President’s secret surveillance programs. Attorney General Alberto Gonzales has suggested a criminal prosecution under the Espionage Act, Congressman Peter King and Senator Jim Bunning have accused the Times of treason, and Republicans in the House of Representatives have passed a resolution condemning the Times for putting “the lives of Americans in danger.”

All this is rank hypocrisy designed to intimidate the press and rally the party faithful, at no small cost to our democracy. The decision of the Times to reveal the secret NSA spy program may have embarrassed the President, but it was a great service to the nation. Any doubt there might have been about the illegality of the NSA program was effectively put to rest by the recent decision of the Supreme Court in the Hamdan case. The administration’s only plausible argument that the NSA surveillance program is lawful, even though it plainly violates the 1978 Foreign Intelligence Surveillance Act, is that FISA unconstitutionally limits the authority of the President as “commander in chief of the Army and Navy.” Even before Hamdan, this claim was weak, at best. After the Court’s five-to-three decision in Hamdan, that claim is frivolous. In declaring unlawful Bush’s military commissions, the Court in Hamdan reiterated what it said plainly two years ago in Hamdi – even a state of war does not grant the President a “blank check” to run roughshod over the law.

The continuing assertion that the government of the United States can criminally prosecute the New York Times for disclosing to the American people the existence of an unlawful program of surveillance is nothing short of shocking. What does the First Amendment mean if not that the press can inform the American people that their elected representatives have violated the law?

Not only does the Bush administration continue to maintain that the government has the authority to punish the revelation of the administration’s own illegality, but they boldly assert that such punishment is justified because the publication of such information put “the lives of Americans in danger.” With all due respect, the publication of information that our nuclear power plants are insecure puts “the lives of Americans in danger.” Disclosure of the torture at Abu Ghraib put “the lives of Americans in danger.” Even criticism of the war in Iraq puts “the lives of Americans in danger.” What makes this danger any different?

Presumably, the administration and its defenders believe that disclosure of the NSA spy program not only put “the lives of Americans in danger,” but created a “clear and present” danger of “grave” harm. But no one in the administration has ever explained how or why this is so. Moreover, the administration knew full well that the Times was aware of the NSA surveillance program for many months before the Times published the story. If the danger of disclosure was truly “clear,” “present,” and “grave,” why didn’t the administration seek an injunction again publication?

Certainly, as in the Pentagon Papers incident more than twenty-five years ago, the Times would have withheld publication in the face of such an injunction. Moreover, as in the Pentagon Papers case, the government could have litigated an injunction without revealing to the public the secret information at issue. But in all the time the administration knew that the Times was considering publication, it did not seek an injunction against publication.

The reason, to me, seems obvious. The lawyers in the administration knew they could not prove the existence of a danger sufficiently “clear,” “present,” and “grave” to justify an injunction. Rather than test the matter in a court of law, the administration sat passively on its hands and allowed the story to be published. Then, after–the–fact, it accuses the Times of disloyalty and browbeats the press with threats of a criminal prosecution. It makes one wonder exactly who is playing fast-and-loose with the truth – and with the nation’s security.

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George,

Not only is their judgement bad but their motives may be worse. Publisher Sulzberger admitted his motives with respect to the New York Times in a commencent speach address. Apologizing to the graduates for not doing more to prevent the "sins" of the Bush Administration. That pretty much says it all. All the news that's fit to print as long as it taking on Bush.

I quit reading the NY Times regularly when I had a belly full of Maureen Down always castigating Bush/Cheney. She and Frank Rich have become a one note orchestra. Too bad. They Gray Lady indeed used to be a great newspaper even if admittedly liberal. Now it is just partisan fish wrapping from the front page to the back page. Sad to see it, but tis the truth.

And the never printing pics of caskets or injuries or blood from teh war? My gosh how the Grey Lady stands up to the Pentagon.

The fact is the NY Times could have objectively played a greater role in outing some of the sisn of the Bush administration. Instead it has sheepishly published what the Bush administration wants it to publish, 99% of the time. The frist time it gets some sac, you repugs cry partisan wolf.

LAK,
I never said the New York Times was "partisan liberal"; I said it exercised bad judgment. It exercised bad judgment when it refused to stand up to the administration on the Iraq War. It exercised bad judgment when it exposed the asset seizure and asset tracking program.

Frederick writes, in part, "If the Bush Administration is creating to many Follies Bushier, they will get reigned in."

I respond: But there is no "they" to reign this administration in. Stone, the Times and a few others are all we have. Gonzales centainly won't bring any action against Bush or the Administration or even tell them they cannot lawfully do what they too often want to do. Congress is out to lunch and campaign planning. The Supreme Court took a passing, but ineffective, swat at Bush. All things considered, Bush and Cheney run free in the Follies Bushier. (Nice turn of phase, by the way.) That is why I mull over the idea of an independent prosecutor, even with it flaws mentioned by David. I share his concerns, but we need something or someone. P.S., I am also not as persuaded as others that snooping into our assets transactions is as legal as many think. I certainly do not want anyone monitoring my monetary tranactions. That is and should be a private matter. On the investmenst side of it, it amounts to theft of investment advice and work product.

Honestly, who cares. We're at war, and this stuff harms no one but the terrorists. It's illegal, we're told. Let Congress handle that behind closed doors by withholding funding if they're wish, otherwise it should be presumed under the AUMF. Sorry, I'm kind of not-so-textualist when it comes to that. Call me a living constitution type. Didn't we learn that kind of deft disregard for rigid rules in Elements. Let the Times release that data to someone in the Senate, if they must. Why must it be on the front page? And why must perfectly legal things that are helpful to the war be publicized?

Seriously, this isn't always a question about law, but about ethics. I'm as reluctant as anyone to see these reporters thrown in jail, even when they are worthless anti-American leftists.

The Times has forgotten it's part of a society that's being attacked by Muslim fanatics, that it must have a certain patriotism in its reporting. Not every issue is the Watergate break-in. I know it's hard for acdemics and others of the marjuana-addled Baby Boomer generation to realize, but it's true. Times are different. We're not as paranoid as you all. We actually realize government has to do some things to protect us from bad people and it's not always our fault. We left our copies of "Steal this Book" on the shelves where they belong.

You all remember Nixon resigning in disgrace, but our generation's foundational symbolic events was the Twin Towers coming down due to the actions of 19 Arab Muslim illegal immigrants. (You don't like that characterization; which detail is wrong?)

When the Times runs stories about legal bank activity tracking or the tail numbers of CIA aircraft from front companies engaged in perfectly legal official flights, it's appalling. It costs us money, it serves no purpose, and it hurts the war effort.

Democrats often say they oppose the Iraq War but support the War on Terror. Then where the heck is their outrage at the Newspaper of Record. Because from Gitmo to the disclosure of sensitive intelligence activities, the newspaper undermines the main war on terror at every turn.

If anything they've done can be connected to violence against Americans, then next time things won't be so nice, I'm sure we all realize. So perhaps a little responsible self-censorship is in order before thousands of body bags have to be rolled out at the sight of some mass murder of Americans due to our blabbermouth, riot-inciting press.

"Not every issue is the Watergate break-in.I know it's hard for acdemics and others of the marjuana-addled Baby Boomer generation to realize, but it's true. Times are different. We're not as paranoid as you all."

Ha! Ha ha ha! We're not as paranoid as you!
That is rich!

You are willing to open the door and take the first slippery steps toward a police state based on an over-hyped madison ave bolstered threat of a bunch of conservative religious fundamentalists and you call those of us who are concerned that the Executive branch is wantonly ignoring the separation of powers and basic 4th amendment protections against government intrusion into our privacy paranoid?

Who is the paranoid one? The one who supports $550B being spent on attacking god knows who, creating more of a self -fulfilling threat all because a bunch of idiots religius freaks with box cutters were successful in killing a few thousand people. Where was this reaction to OK city?

Roach, it sounds like you could use a little pot to bring you back down to earth my friend. Relax that sphincter you know? You my friend, are the most paranoid of all. The fear you live with is palpable and for that I pity you. But don't call those of us who identify the unmeasured response of our governemnt to a threat that is more scary than imminent and its attack on our privacy rights paranoid when you are so hell bent on making those poor religious fundamentalists hate us even more.

People like you and the policies you support are actaully making this threat more real than it has ever been by supporting preemtive war and foreign policy that continues to expolit the poor of the world to the benefit of the few thereby breeding the sort of resentment and ignorance that results in violence.

That you can not see how dangerous it is, and what a slippery slope it is for the executive branch to start acting like a king or a police state makes me think you have never taken the concerns of the founding fathers seriously.

FAIR, I guess great acronym developers think alike. FAIR Federation for American Immigration Reform or FAIR Forum for Accademic and Institutional Rights. The immigration FAIR group is not a bunch of "right wing anti-immigration shill". Go to their home page and view the bios of their board of directors. Urban League, Planned Parenthood, Homeless advocates, Physician reps from Planned Parenthood, et al. You shouldn't slime that FAIR. You may not agree with them but their board seems pretty upstanding and they are willing to be named. Not so the FAIR below.

Now the law school FAIR group is a strange amalgum of not so gutsy people. Of their 36 law school and law faculty members, only 24 are willing to be named publicly. How odd. Go to their web site. You would think that the group is a well meaning bunch admittedly liberal but certainly out to eliminate what they feel is sexual discrimination. Why would 12 law schools want to be hidden in the shadows. Would it be that those 12 thought the FAIR v Rumsfeld law suit had no merit and didn't want to be a part of that publicly or their reputations would be sullied? Sorry. I'm off on a tangent. But when Anon mentioned FAIR all I knew of was the law school FAIR. When the supremes decided 8-0 (yep even those liberal supreme members) that the FAIR v Rumsfeld lawsuit was not founded on solid constitutional grounds I suspect those constitutional scholars that wanted to remain nameless breathed a sigh of relief and the poor blokes willing to go public and who claimed their law school free speech rights denied had to undergo the humiliation brought down by other consitutional scholars who came forward and opined on the quality of their thinking and why were they teaching constitutional law in first place. 5-3 OK, 6-2 OK 7-1 still OK, but 8-0. Whew, a frivolous law suit by some wacky liberal law professors who should have known better.

Let's see where were we. Oh yea terrorism, NSA, Hamdan and The New York Times. Just reported that the FBI uncovered a plot to blow up NYC tunnels. One fellow arrested in Lebanon. Ties to al Zarqawi. Put together by listening in on the internet. I suspect The New York Times will opine and decry the loss of privacy over the internet. How many living NYC residents would be dead were not for penetration and intervention? Not enough for Professor Stone and those that want to shut down the snooping. I only go to NYC once a year and live in a rural part of the country so I should be OK. But some of the rest of you may want to rethink snooping, spying, penetration and intervention. Your life may have been spared.

You trust the good graces of Muslim fanatics who've killed fellow Americans. I trust our elected leaders more.

It's notable that the previous foreign-war-induced crises of civil liberties disappated when the threats did. That will happen here too. And domestic threats, thankfully, are few and far between. After OKC the government did, however, massively infiltrate the militia and right-wing extremists movements and shut down a number of actual and potential conspiracies. Then things went back to normal. Things have not been normal with Muslims and Christians since Arab armies swept through Jerusalem, since they were defeated at Tours, Lepanto, and Vienna. This is a long and ongoing struggle. We should cordon off this area, stop letting these people in, and then we won't have to sacrifice our liberties so much.

But what's paranoid, fear of the other who says he'll kill you or fear of the government being the 1,000,000th person to have your credit card and phone transaction data. Give me a break. Don't call Osama and you'll never have a problem. You have demonstrated LAK, however, why Democrats won't win any national elections anytime soon; you think this war is not really a war. It's obvious.

And the worst thing is that these people constantly decry the intelligence failures of the Bush administration, as if these encroachments on civil liberties are not absolutely essential to gather appropriate intelligence. Total fantasy-land.

Nobody wants to shut down snooping, just snooping on innocents with no cause whatsoever. The FISA standards for getting a warrant are not that hard to meet. Let's not be disingenuous by suggesting that those of us who are against warrantless data mining and spying on the public at large or who actually believe in the 4th amendment want all intelligence gathering to stop. That is ridiculous, and false.

You suggest that this guy in Lebanon was caught by inetrcepting internet traffic? Fine, so longa s it was targeted, which it apparently was. From what I could gather, this guy would have benn caught within the confines of FISA, so lets stop suggesting otherwise. It is a cowardly argument made by those who fail to recognize that a whole lot of intelligence can be gathered and plots thwarted by working from within the constitutional confines of our system of laws.

"And the worst thing is that these people constantly decry the intelligence failures of the Bush administration"

You think data mining on the public at large is going to help solve our intelligence failures or just further complicate things and breed suspicion of innocent people? Hmmmm. I wonder.

And lets be real here, there were less intelligence "failures" than hand picked intelligence mischaracterizations to justify bogus war. Big difference. Bush may call the lack of nuke purchase or lack of WMDs an intelligence failure, but those of us with open eyes know that these failures were purposeful pretext for a war that has nothing to do with the supposed war on terror that apprently and mysteriously is in Iraq and not Saudi Arabia and Pakistan.

And yes, these encroachments on civil liberties are not essential whatsoever. Prove to me otherwise that you can't accomplish all of this within the confines of the law. Hell FISA allows you to tap phones without a warrant for flimsy reasons you get to present to the court ex post. Not exactly a burden on intelligence gathering. Just a safety measure to make sure GWB doesn't start using his claimed power to monitor the actions of those Planned Parenthood terrorists...

As far as I can tell the guy in Lebanon and his cohorts were caught by gathering foreign intelligence exclusively, so the argument about Bush's crapping on the constitution isn't even relevant here. So we should stop using it as an example off all the safety that spying on American citizens brings us.

It does go to show how unlikely it is that any of these idiots can be successful, without even needing to resort to taking the first sippery steps toward a police state by allowing domestic spying on average citizens.

Roach: The American public has a right to know when its rights are being unlawfully compromised in secret by its elected representatives. It is that simple, whether in wartime or not. The Times disclosures are important and crucial in this regard.

Whether we are at war does not matter on this point, especially if disclosure of such snooping does not in fact compromise the war effort, for want of ready alternatives for al Quada. Bush told the world early on after 9/11 (a disproportionate accident, by the way) that he was going to dig into al Queda's financial transactions; he did not however, mention ours. Unlike al Queda, we got no notice.

His and Cheney's indignation is a sham, I believe, and an offensive on their own wrongdoing, like screaming "I'm innocent and I did it for our country." I would not trust these two to do more than listen to God and line their pockets, respectively. The perspective of the Bill of Rights is not to trust our government. There is wisdom in that. If government were trustworthy, we would not need a Bill of Rights.

There is no reason we cannot have a balanced consideration of interests and rights in a system of oversight, with people of good tactical and legal judgment at the helm, and do a good job in all quarters, including the war, instead of having this run away circus and Follies Bushier.

Roach, I think you are much more terrorized than most of us are. While I do not view Bush, Cheney and their crony appointees as being terribly competent or able, Arab fundamentalists have made them look like true rocket scientists by comparison. Japanese kamikazes usually hit their targets, but these Arabs are so busy talking to the same God Bush listens to, they seldom get much right, coordinate all that well or hit theirs. I would trust a couple of MIT sophomores to put together a dirty bomb and timely use it on target years before any Arab fundamentalists. That said, I am not suggesting we should not be concerned, taking steps and doing some of the things we are; only that life goes on and we should not be doing more damage to our own rights and institutions than the Arab terrorists are. Our escalation of the war by invading Iraq hurt us a great deal and in the same manner. In the longer run, Arabs’ will in their homelands will prevail, not ours and we will wind up looking like the greater fools.

Frederick, I don't think any of us are against snooping, spying, penetration and intervention in the war on terrorism. That needs doing, but with oversight and broader and better judgement. It was bad judgment to attack Iraq, I believe. It only escalated the war on terrorism. However, as I said above, there is no reason we cannot have a balanced consideration of interests and rights in a system of oversight, with people of good tactical and legal judgment at the helm, and do a good job in all quarters, including the war on terrorism, instead of having this run away circus and Follies Bushier.

Roach writes, "It is notable that the previous foreign-war-induced crises of civil liberties dissipated when the threats did. That will happen here too."

I also believe this is true, but how do we end or even see an end to this on-going war on terrorism? It is becoming a part of the mesh of our lives. Koranic schools in the Middle East and Pakistan are cranking out 8th century Muslim fanatics as fast as their mothers' wombs can produce them. Too many sensible Muslims leaders who could have moderated these situations in their home countries have immigrated, leaving too many radicals and lame brains behind. Too, it is a sporadic war that lets the Arabs rest up between skirmishes, but keeps us running scared. The Arabs have gotten better bang per buck in their war effort than we have. That is for sure. In part that is because they have little to loose, comparatively. At least we have reached the point were we can watch something other than the news occasionally.

The Iraq war and spying on terrorists are two distinct and seperate situations. They really don't have a nexus other than there are terrorists within Iraq presently. Congress passed two seperate laws with regard to AUMF regarding the terrorists who attacked us on 9/11 and another vote by Congress to approve the war against Iraq.

Kimball, you state that "The American public has a right to know when its rights are being unlawfully compromised in secret by its elected representatives." Could you please tell me what rights of yours or mine have been unlawfully compromised (secret or not)? Fourth amendment rights? Don't believe it. The Fourth talks of "unreasonable search". Unreasonable to search the terrorists/enemy when in a legally approved war? Doubtful, despite all of you who argue otherwise. The reason all of your protestations don't carry the day and ring rather hollow is as follows:

1 Congress has been briefed on all the activities all of you detest.

2 The weight of the legality of the war against the terrorists.

3 FISA court already acknowledging the legality of the President's spying on the foreign terrorists.

4 The vast majority of the public, which by the way, this "uproar" that all of you percieve is a big yawn to the rest of us, want our government right up any terrorist's arse that plan to kill us. Whether they are in or out of the U.S.

5 9/11, 7/7, Madrid, Bali et al. the terrorists (bin Ladan, Zarqaw1, et al) statements, letters documenting their intentions toward attacking the U.S. and killing us indiscriminantly, all reinforced once more with the recently uncovered plot to attack the train tunnels from NJ to NYC.

6 There is oversight. Isn't it amazing that no member of Congress is making a move to defund or introduce legislation to stop NSA wiretaps of internatinal calls, CIA data mining of financial data (SWIFT), NSA data mining of phone numbers and trying to connect numbers to known terrorist numbers (no names, no listening in, legal data mining). All of those programs were vetted with members of Congress. All secret (sorry, used to be secret except for the media). All, and I will be proved right on this, quite legal.

There is going to have to be some sort of INTENTIONAL Nixonian use of intelligence activity against regular citizens or political enemies before the public agrees with any of you regarding the loss of our "rights". We the public want to destroy the "rights" of the terrorists. Whether any of you like it or not that will require top secret work by our government. Outside the pages of The New York Times. With oversight? Of course. Again, Congress has been informed of all of the above programs you all think are wrong. Even the most liberal members of Congress are not trying to stop any of them. We live in a very dangerous world (Iran, North Korea, etc.) Mayber if we get the type of national leadership you all approve of and get rid of the mini-minds of Bush, Cheney, Rice, Powell, Rumsfeld, Hayden, Negroponte, Mueller, et al, we'll have a more relaxed approach to the terrorists. Don't hold your breath. I think Hillary will be just as closed mouth, secretive and tough on the terrorists as Bush. Hell, maybe moreso.

Came across this on Power Line regarding what it will take for Democrats to win the hearts of voters regarding security and the war on terror.

"The new issue of the Weekly Standard is full of great stuff on subjects that we've been writing about. In "The inconvenient truth about Truman," Noemie Emery carries on the discussion of "imaginary liberals" that Paul has advanced in five installments here. Emery deflates a number of "myths" advanced by Peter Beinart, Joe Klein, Will Marshall and others criticizing Bush administration foreign policy. Emery's article is difficult to excerpt, but here is a taste of Emery on the architects of Truman administration foreign policy:

The Wise Men who devised the formula that saved most of Europe--supplying regimes under pressure from Communists--ran out of answers when it turned out the regimes under pressure were too inept, too corrupt, or too unpopular to use aid effectively; and the United States was faced with the choice of letting them go (as in China) or taking the war over, as in Vietnam. Neither choice was in any way popular, and each ended badly. North Korea and China are still causing problems. Truman didn't "lose" China--it wasn't his to begin with--but the Wise Men, it seems, were not quite all-knowing. Do not expect the subject of Asia to come up all that often in these hymns to the liberal hawks.

Above all, do not expect Korea to be brought up at all. Korea, in fact, is Iraq on steroids, a compendium of every complaint that the liberals bring against Bush and his administration: a war of choice that began with an error, that became in effect the mother of quagmires, that cost billions of dollars, killed tens of thousands, and dragged on years longer than anyone looked for, to an inconclusive and troublesome end. It began with a mistake--Acheson's omission of South Korea from a list of countries within the American sphere of protection, which may have led the North to believe it could invade without consequence. It was a war of choice, in that it was an invasion of a country to which the United States was not bound by treaty, but felt obliged to defend as a matter of principle.

Emery's conclusion is biting:
[Beinart et al.] are right to look to Truman for a way out of their malaise and their quandary, but the Truman they create is part of the problem: soft-power Harry, Humility Harry, with none of the iron that he had in real life. They don't like the real Harry--the one of Japan and Korea--and they don't like his real traits, when they see them in others, like George W. Bush. This is their flaw, and their evasions won't help them. When they own and admit the genuine Harry, people will trust them with power again."

Frederick writes: “The Iraq war and spying on terrorists are two distinct and separate situations.”

I respond: They are not. The Iraq war has seriously escalated the war on terrorism. Bin Laden makes that very clear, suggesting that if we get our troops off the Arab peninsula and temper our biased support for Israel, terrorist activities will stop. Totally believe him or not, there is a connection and a big one. Our presence in their homelands puts a bee in their bonnet. Imagine Arab troops militarily occupying American soil and insisting that we adopt a theocratic form of government to replace our democracy. We would go ape. Why can’t we see this?

Frederick writes: “Kimball, you state that ‘The American public has a right to know when its rights are being unlawfully compromised in secret by its elected representatives.’

I respond: This is exactly my position. I applies always and perhaps especially during war time.

Frederick writes: “Could you please tell me what rights of yours or mine have been unlawfully compromised (secret or not)?”

I respond: We don’t fully know, because everything, except what the Times tells us, is kept secret, whether that is necessary or not. Secrecy is used to conceal wrong doing by this Administration, I believe. I think our Fourth Amendment rights have been seriously violated. The Bush administration decided not to but the first disclosed NSA surveillance before the FISA Court precisely because it too thought it would loose on the Fourth Amendment question. That is, the Administration itself believed that a neutral oversight court would find their searches “unreasonable.” If they believe that, why shouldn’t you, especially when the weight of scholarly opinion is against your position.

I also believe Administration threats of a treason action against the Times chill First Amendment rights and compromise to that extent on our right to know if our rights are being violated.

Frederick disagrees and writes: “The reason all of your protestations don't carry the day and ring rather hollow is as follows:
1 Congress has been briefed on all the activities all of you detest.
2 The weight of the legality of the war against the terrorists.
3 FISA court already acknowledging the legality of the President's spying on the foreign terrorists.
4 The vast majority of the public, which by the way, this "uproar" that all of you perceived is a big yawn to the rest of us, want our government right up any terrorist's arse that plan to kill us. Whether they are in or out of the U.S.
5 9/11, 7/7, Madrid, Bali et al. the terrorists (bin Ladan, Zarqaw1, et al) statements, letters documenting their intentions toward attacking the U.S. and killing us indiscriminately, all reinforced once more with the recently uncovered plot to attack the train tunnels from NJ to NYC.
6 There is oversight. Isn't it amazing that no member of Congress is making a move to defund or introduce legislation to stop NSA wiretaps of international calls, CIA data mining of financial data (SWIFT), NSA data mining of phone numbers and trying to connect numbers to known terrorist numbers (no names, no listening in, legal data mining). All of those programs were vetted with members of Congress. All secret (sorry, used to be secret except for the media). All, and I will be proved right on this, quite legal.”

I respond: This Congress is a patsy, Republican rubber stamp collection of me-too sycophants too busy campaigning to do its job. It affords no oversight and approves of anything Bush wants in these quarters. The oversight the Administration proposed and Congress had no objection to was ‘spy for 45 days and if there was a need to continue, Gonzales would report to a Republican committee of Congress on why the spying had to continue, but the committee would have no right to stop the spying.’ This is a joke and a farce that reflects very badly on the Administration and Congress. So kiss Congress good-bye in this matter. We have no effective oversight at all.

Secondly, as I pointed out above, the weight of legal authority is strongly against the Administration. There are some with views like your who would like to change the law to make Administration doings legal, but that should not be done after the fact, but only prospectively. Otherwise, it is a legal whitewash.

Thirdly, the FISA Court has NOT approved any of the challenged doings of this Administration. The Administration has not submitted any of its programs at issue here to that court.

Fourthly, The American public, comprised too much of red staters, does not much read, nor understand, or care about too much except what immediately comes within the preview of their own personal experiences. Law is the last thing they have a handle on. Too many are oblivious. Literacy in America is declining, especially in this camp (Ever notice how most of the best universities and colleges are in the blue states? No coincidence I submit.) Moreover, many Americans, myself included are very upset about these snooping programs. I am not alone here.

Frederick writes: “There is going to have to be some sort of INTENTIONAL Nixonian use of intelligence activity against regular citizens or political enemies before the public agrees with any of you regarding the loss of our "rights.’”

I respond: But that is not the way the Fourth Amendment works. The Amendment has, as a predicate assumption, that government is not to be trusted with the information in the first instance unless and until there is effective oversight and approval and certain cause standards are met. Further, how would we know if this Administration is misusing information. If it did, it would certainly try to keep that fact a secret, for national security purposes, of course.

Frederick writes: “We the public want to destroy the "rights" of the terrorists. Whether any of you like it or not that will require top secret work by our government.

I respond: Fine, let the Administration spy on all the terrorists it wants. I am not a terrorist so don’t spy on me and snoop into my affairs is my position.

Frederick writes “We live in a very dangerous world (Iran, North Korea, etc.) Maybe if we get the type of national leadership you all approve of and get rid of the mini-minds of Bush, Cheney, Rice, Powell, Rumsfeld, Hayden, Negroponte, Mueller, et al, we'll have a more relaxed approach to the terrorists. Don't hold your breath. I think Hillary will be just as closed mouth, secretive and tough on the terrorists as Bush. Hell, maybe more so.”

I respond: There are seriously competent people in this country, but this Administration just did not get enough of them on board, starting with the President, a visionary. Better heads, like Powell got marginalized and then dumped. If we had a better crowd in the Administration (instead of rewarded cronies) and in Congress, I think we could all rest easier. Hillary scares me just as much. It is not a happy situation. Our best people do not go into politics.

As Frederick says, North Korea is a serious problem, even for China. But China is smart about it. Even though it provides much aid to North Korea, it does not use that aid as a stick to get North Korea to do want it wants. China is also a hold out vote on the security council for sanctions against North Korea. Smart fellows, these Chinese. They know North Korea's missiles will therefore be aimed not at them but at the “Axis of Evil” loud-mouthed, punitive-thinking Americans. How dumb can we be. And what does the Chinese approach cost them. Next to nothing, ignoring the earlier implemented aid packages largely designed to prevent a regime implosion in North Korea that would send hordes of North Koreans fleeing into China

Kimball: I don't see that this war has "become part of the mesh of our lives" quite like WWII. the Civil War, or even the Cold War during which I recall my father building a fallout shelter in the basement at the time of the Cuban Missile Crisis, and I definitely do not believe that we are "running scared." Most of us are not impacted a bit by this war, except intellectually when we read the news or the blogs. And I pray that we won't be.

Like Frederick and Roach, I am an optimist about the U.S., based on our system of government, and believe that if there have been abuses, they will eventually be corrected. You want checks and balances, but I read every day that lawsuits have been brought, soldiers are being courtmartialed, Congress is holding hearings, etc. regarding the alleged abuses. Looks to me like checks and balances at work. And of course there are elections later this year and in 2008.

Re the "bang for the buck:" As I pointed out elsewhere on this blog, the jihadis have been at this a long time--probably since the 1930s. We're just starting to see the problem and trying to evolve effective means to combat it--we went after the bigger threats of fascism and communism first. As Frederick points out above, the strategy to combat communism chosen by President Truman ("Containment") may not have been perfect, but remained pretty much the U.S. game plan and we seem (at least at this writing) to have prevailed in the Cold War. I am confident that the U.S. and its allies--who are the overwhelming number of governments and people in the world if you look at the big picture--will eventually figure out how to combat the jihadis both militarily and politically without the U.S. losing its fundamental character or its citizens losing our fundamental liberties.

David, you are right. This “war” does not impact us the way others have in the sense that we don't walk around with rationing coupons in our pockets, but we -- or at least our government – are certainly terrorized. Indeed, we are spooked. The terrorists have done a great job of terrorizing us at minimal cost and loss of human life. But the checks and balances I find missing are between the Executive, Congress and the Court, largely because Congress doesn’t really do its job. It holds hearings until the cows come home, but too little come of them. Congressional investigations die on the vine. Everyone is busy campaigning.

On how to fight the Islamic fundamentalist, I think the way to really get to the jihadis is with humor, satire and news commentary targeted on their views and thinking and broadcast strongly and effectively throughout the Middle East by television and radio. They could not survive that. It is the one thing that would do them in. They cannot take ridicule, especially if it amuses their saner brethren. The cartoons were but a tiny step in the right direction.